Since COVID-19, all employers have had to take special precautions and prepare the workplace for staff to work in a COVID safe environment.

Some employers have made HR responsible for implementing new practices and procedures, some have a designated health and safety officer.

In the UK, there is a raft of health and safety protection and legislation to protect employees from dismissal. It is unlawful to dismiss an employee if the reason (or principal reason) for the dismissal is that:

“having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities.”

This affords broad protection to an employee who has been tasked by their employer to carry out health and safety activities. The way in which the employee undertakes such activities will not necessarily provide the employer with grounds to side step this protection.

In the recent case of Sinclair v Trackwork Ltd, Mr Sinclair was a track maintenance supervisor and he was given the task of implementing a new safety procedure. The employer, Trackwork Ltd, did not notify its other employees that Mr Sinclair had been tasked with doing this and some of them raised complaints about his “overcautious and somewhat zealous approach”.

The employer subsequently dismissed Mr Sinclair because he was causing “upset and friction” amongst other staff. Mr Sinclair took his case to an Employment Tribunal arguing that his dismissal was automatically unfair because the reason was that he was carrying out health and safety activities, which he had been designated to do.

The Employment Tribunal dismissed Mr Sinclair’s claims saying that although he was only doing what he was instructed to do, the rest of the workforce had become demoralised and demotivated by it. However, the Employment Appeal Tribunal allowed the appeal and said that it would wholly undermine the protection afforded by health and safety legislation if an employer could dismiss for upset caused by a legitimate health and safety activity by saying that the upset was unrelated to the activity itself. It would only be potentially fair to dismiss, if the employee’s actions in carrying out the health and safety activity were unreasonable, malicious or irrelevant to the activity itself. In this case, Mr Sinclair had been carrying out his duties diligently and none of his activities could be said to be separable from the carrying out of health and safety activities under the relevant legislation.

This is a reminder to employers that in light of new and stringent guidelines on keeping staff and workplaces COVID secure, it is important to communicate with staff in order that they appreciate and understand any new rules arising out of risk assessments and how those might be implemented. It’s also a useful reminder of the important health and safety protections afforded to staff under UK legislation and to take advice on any dismissal, even when you think that the reason may not be related to health and safety activities.

For Employment Law advice on health and safety dismissals, contact our Employment Team.